The Jury Is Out On Nullification

I would venture that for the average American citizen, the #1 Google search pertaining to the word “jury” is “How do I get out of serving on a. . . .” With the possible exception of being force-fed Brussels sprouts, I doubt there’s anything the public unanimously despises as much as performing jury duty. Folks who wind up serving on juries are the punch line to jokes that begin, “He was so dumb, he couldn’t even get out of. . . .”

I once had a dream – not the Martin Luther King type dream, but the nodding-off REM-triggered type – where the Founding Fathers had already secured a militia and so harpooned the current Second Amendment in favor of one that read, “In order to secure a fair system of justice, the rights of the citizens to serve on juries shall not be infringed upon,” and the upshot was that the NRA had been replaced by the NJA – the National Jury Association – with their membership demanding – demanding! – that more criminal cases go to trial, so that we, the public, could exercise our God-given Second Amendment right to sit in a jury box and vote thumbs-up or thumbs-down on a party’s guilt.

Yes, I have very strange – and idealistic – dreams.

Alas, instead, jury trials are going the way of the dodo bird. So much so that, six months ago, if you had said the words “jury nullification” to me, my first response would have been that the power of juries in this country is increasingly being nullified by settlements, plea bargaining, and anything done to ensure that a case isn’t presented to a dozen “wild card” members of the citizenry.

But then, in January, New Hampshire (the “Live Free or Die” state) made headlines when a bill was introduced in its House of Representatives (HB 1452) requiring judges presiding in criminal trials to inform the jury that it was free to exercise its power of “nullification.” This followed on the heels of a 2012 law passed by the state legislators permitting lawyers to tell jurors pretty much the same thing.

“Nullification” is the vehicle by which a jury returns a verdict of “Not Guilty” not because the defendant is, in fact, not guilty, but because the jury either disagrees with the law, its application in the case before it, or considers the punishment disproportionate to the crime.

Even though nullification is a power that juries have already exercised, New Hampshire was the only state to propose such a law. Which is why it made headlines.

Historically, juries have exercised it for good (nullification has been credited with contributing to the repeal of Prohibition and anti-sodomy laws), bad (during the Civil Rights movement, southern racist juries excused violent acts against civil rights workers), and “depends” (gun owners going free despite clearly breaking the law, for example). Depending on where you stand on a particular issue, nullification is either a defiant middle finger to an unjust and tyrannical government, or a call to anarchy.

In other words, it’s controversial. If jury instructions were delivered in “contract” form, nullification would appear in the 47th paragraph of the small print section, way past when 99 percent of jurors had stopped reading.

One group that champions nullification is the Fully Informed Jury Association (www.fija.org). (FIJA states that it doesn’t take stands on issues like the New Hampshire law, but in reality it’s “neutral” in the same way evangelical churches don’t endorse anti-abortion candidates.) It points to the 1972 case United States V. Dougherty, decided 2-1 by the U.S. Court of Appeals for the District of Columbia, as the benchmark case in which the Court ruled that judges aren’t required to inform jurors about nullification because this power is “implied” in the overall instructions. What’s really implied is that the Court didn’t want jurors to use it.

Considering how jury instructions can drone on, it’s hard to see how adding a definitive sentence, “Oh, by the way: if you don’t like the law, or the way it’s being applied in this case, feel free to reject it,” could hurt. In fact, I imagine it might make those jurors perk right up.

It also might have made an impact on the jurors weighing the fate of Cecily McMillan, the 25-year-old Occupy Wall Street protester who was recently convicted of second-degree felony assault against a police officer, and who faces up to seven years in prison. After the jury was dismissed, they were said to be “shocked” to learn McMillan faced such harsh punishment, and nine of the jurors subsequently wrote the judge a note, pleading for leniency in her sentencing.

Had they known about nullification, perhaps they would have employed it. Given their reactions, it’s hard to imagine they knew about their “implied” power.